French & Anor v Savelieva

When a party seeks an order that may lead to the reopening of evidence after a trial or hearing has closed, the decision-maker must require a good reason for any delay before exercising the discretion to permit the step. Jurisdiction to receive late evidence does not itself justify exercising that jurisdiction. Unexplained and unjustified delay, and the resulting disruption, cost and prolongation of litigation, are relevant matters that must be considered. The impact of litigation stress on the opposing party is distinct from the risk of further costs and must also be taken into account.

The claimants sought a possessory title to a strip of land registered to the defendant in proceedings before a deputy adjudicator of Her Majesty’s Land Registry. After the evidence and closing submissions had concluded, the defendant applied for production of photographs, negatives and related materials so that a photographic expert could inspect them. The application was based on doubts about the authenticity of photographs which had been raised earlier, although no expert examination had previously been sought.

The deputy adjudicator allowed the application, imposed costs protections and made provision for possible further directions. The claimants applied for permission to appeal and, if permission were granted, appealed against that order.

1. Permission to appeal was granted and the appeal was allowed. The deputy adjudicator’s order requiring production of the photographic materials was set aside.
2. Although there was jurisdiction to receive evidence late, the deputy adjudicator was required to consider whether a good reason had been shown for the delay before making an order which created the possibility of further delay, cost and disruption. No good reason had been shown. By leaving the unexplained and unjustified delay out of account, the deputy adjudicator committed a plain and manifest error and made an order which he could not properly have made had all relevant factors been considered.
3. The importance of a losing party understanding why the case had been lost, and the question whether the opposing party had anything to lose from expert examination, did not answer the delay issue or justify the order.
4. The deputy adjudicator had also failed to consider properly the impact of prolonging the litigation on the claimants’ litigation stress. That was a distinct consideration from the risk of further costs. Claimants, like defendants, were entitled to have their cases heard fairly and with due expedition.

• High Court (Chancery Division): The appeal from the deputy adjudicator’s order of 27 March 2013 was allowed and the order was set aside.